California has designed civil grand juries to hold city and county governments accountable. However, who holds the civil grand jury accountable is murkier.
For several months, The Weekly has sought better insight into the Santa Clara Civil Grand Jury’s inner workings, specifically, the recusal process. The civil grand jury is transparent with its list of jurors. However, it fails to reveal which issues jurors investigate and which jurors recuse themselves.
Civil Grand Jury Recusals Require Grand Jurors to Police Themselves
At least three members of the 2023-24 Civil Grand Jury are involved in the Santa Clara community – Bob O’Keefe, Shirley Modric and Joanne Polverino. One is a current political candidate, using his service on what is supposed to be an apolitical body to help him enter elected office.
In 2018, O’Keefe ran for Santa Clara city clerk. He also opposed Council Member Suds Jain in the 2020 District 5 race.
In November, O’Keefe is again running for city clerk. In his candidate statement, he highlights his civil grand jury service as one of his qualifications. O’Keefe is running on a ticket of candidates backed by Santa Clara Mayor Lisa Gillmor, City Council Member Kathy Watanabe and the Santa Clara Police Officers Association (SCPOA).
In June, the civil grand jury released a scathing report about the Santa Clara City Council titled “Irreconcilable Differences.” The report painted the picture of a dysfunctional council, one where the misbehavior of the majority – Jain, Vice Mayor Anthony Becker and Council Members Kevin Park, Raj Chahal and Karen Hardy – held the minority, Gillmor and Watanabe, hostage.
O’Keefe served on that civil grand jury. Jain is up for re-election, and his opponent is on the same campaign ticket as O’Keefe.
The “Irreconcilable Differences” report said two grand jurors recused themselves, but when The Weekly asked if O’Keefe had recused himself because of his history with Jain, the answer was indirect.
“The Civil Grand Jury receives training and legal counsel on civil matters from the Office of the County Counsel, in accordance with California law,” said Jessica Kellogg, communications manager for the Santa Clara County Superior Court. “[T]his includes conflicts of interest under Penal Code 916.2 and the Political Reform Act. Individual questions concerning potential conflicts are addressed with counsel in an attorney-client privileged manner. Public information regarding recusals is provided at a general level in a final Grand Jury report.”
In this instance, “general level” simply means the number of jurors.
Penal Code 916.2 also does not apply in O’Keefe’s case. It only requires a civil grand juror to recuse themselves if they are a current employee of the agency they are investigating or worked for that agency in the past three years. O’Keefe is neither.
In terms of the Political Reform Act, the Civil Grand Jurors Association’s website reads: “The Political Reform Act, which prohibits government officials and employees from having financial conflicts of interest, applies to grand jurors and can require their recusal from all aspects of a grand jury investigation and report. Grand jurors must also recuse themselves in situations involving other types of real or perceived conflicts of interest or bias.”
The language does not specify what constitutes a “conflict of interest” or “bias,” nor does it detail the consequences for someone who fails to recuse themself.
Vague Consequences for Grand Jurors Who Fail to Recuse Themselves
The Weekly explored both questions when it discovered that another Santa Clara community member and civil grand juror, Polverino, had close contact with several of the Santa Clara City Council members criticized in the “Irreconcilable Differences” report.
In May 2024, while the investigation was still going on, Polverino attended the Soroptimist International of Santa Clara Silicon Valley Classy Bag Affaire.
Several members of the Santa Clara City Council chastised in the report attended the annual social event. Polverino sat at one of their tables.
That council member says that despite sitting a few seats away, Polverino never introduced herself or disclosed her involvement on the civil grand jury.
Five days later, Polverino called the council member to verbally confirm that they would attend an exit interview before the release of the “Irreconcilable Differences” report.
The Weekly laid out this scenario to Kellogg, asking what would be considered “too close contact” between a civil grand juror and a subject of an active investigation.
Kellogg did not reply.
When asked if there are checks in place to ensure that civil grand jurors follow proper recusal steps, Kellogg again did not reply.
When asked what the repercussions are for civil grand jurors who break recusal rules, Kellogg did not reply.
Conflict of Interest is Not a New Issue with the Civil Grand Jury
Perceived conflicts of interest are not a new issue confronting the Santa Clara Civil Grand Jury.
In June 1991, a civil grand jury report about the Department of Correction came under scrutiny, with the director of the department alleging ulterior motives.
The allegations involved current Santa Clara Mayor Lisa Gillmor, who was serving on the civil grand jury in 1991. According to a report by the San Jose Mercury News, the head of the Department of Correction pointed out that Gillmor had contributed $1,000 to a political campaign to prevent the Department of Correction from being formed. [1991 Mercury Grand Jury Audit Gillmor]
The civil grand jury did not comment at that time either.
Civil Grand Jury Protected from Accountability
According to the Santa Clara County Civil Grand Jury website, “The Civil Grand Jury is an investigatory body created for the protection of society and the enforcement of the law.”
It considers itself a “civil watchdog” cleared to “examine all aspects of county and city government and special districts to ensure that the best interests of Santa Clara County residents are being served.”
However, who watches this “civil watchdog” is unclear. Communications between the public and civil grand jurors are confidential and subject to “attorney-client” privilege. This privilege extends from the moment a grand juror is impaneled to the moment they are released from service.
The protection lives in perpetuity, essentially locking a juror’s communications during their civil grand jury tenure in a vault. Further, the protective umbrella seems to cast a shadow over all communication, failing to distinguish between personal exchanges and those related to civil grand jury matters.
As a “watchdog,” the law exempts civil grand juries from the records request requirements that bind city and county governments. The 1988 ruling McClatchy Newspapers v. Superior Court found that the secrecy of the grand jury evidence was essential to the grand jury’s ability to carry out its functions.
Disclosure of information is allowed on a very limited basis and only a small handful of judges within the county’s judicial system can authorize the release of civil grand jury documents. One of those judges with that authority is the same judge tasked with overseeing the civil grand jury.
As a result, it appears the only true watchdog for the civil grand jury is the civil grand jury itself.